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Jack Gray Transport, Inc. - Interim Decision, November 20, 1985

Interim Decision, November 20, 1985

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-0001

In the Matter

- of the -

Request for a hearing on the Department of Environmental Conservation's denial of
an exemption on Waste Transporter Permit IN-004 by

JACK GRAY TRANSPORT, INC.
INTERIM DECISION
November 20, 1985

INTERIM DECISION OF THE COMMISSIONER

In this proceeding, Jack Gray Transport, Inc. (the "Applicant") seeks a renewal, pursuant to 6 NYCRR §364.l(d)(4), of an exemption from certain reporting requirements applicable to its waste transporter permit. By letter dated October 16, 1985, Buffalo Fuel Corporation applied for party status in this proceeding. Following a legislative hearing and issues conference, Administrative Law Judge ("ALJ") Daniel E. Louis, by Ruling dated November 1, 1985, denied this application. Buffalo Fuel Corporation has appealed from this denial of party status, arguing that its position as a competitor of the Applicant constitutes sufficient economic interest to confer party status pursuant to 6 NYCRR §624.4.

For the reasons which follow, the ruling of ALJ Louis is affirmed.

6 NYCRR §624.4(b) sets forth the criteria for granting party status to proposed intervenors in Department permit hearings. It requires the filing of a statement which identifies:

the person's grounds of support or opposition to the project, including a demonstration of the social, economic or environmental interests of the person which are likely to be affected by the proposed project; and

the nature of the argument and evidence which the person intends to present, and any other matter believed relevant.

Section 624.4(c) provides that an ALJ1s ruling on party status "shall be based upon a finding that sufficient interest, as described in paragraph (b)(l) of this section, has been demonstrated."

These standards for party status must be interpreted by application of established principles governing standing to challenge administrative action. Under the controlling test enunciated by the Court of Appeals in Matter of Dairylea v. Walkle , 38 NY2d 6 (1975), a person seeking to challenge a-J a ministrative action must establish (1) injury in fact, and (2) that the interest asserted is arguably within the zone of interest to be protected by the applicable statute. Competitive injury is not sufficient, in and of itself, to confer standing (Matter of Bank v. Allen, 35 AD2d 245 [3d Dept., 19701). Thus, a person seeking party status in a Department permit hearing must establish not only a social, economic or environmental interest likely to be affected, but also that the applicable statute is arguably intended to protect that particular interest.

While Buffalo Fuel Corporation, as a competitor of the Applicant, may suffer economic harm in the form of increased competition should the Applicant's exemption renewal be granted, this interest does not arguably fall within the zone of interest to be protected by ECL Article 27, Title 3, which governs waste transporter permits. ECL S27-0301 sets forth the purpose of that title, stating:

It is declared to be the intent and purpose of this title to protect the environment from mishandling and mismanagement of all regulated wastes transported from the site of generation to the site of ultimate treatment, storage or disposal and to prevent a discharge of wastes into the environment, whether accidental or intentional, except at a site approved for the treatment, storage or disposal of such wastes.

This express statement of intent establishes that neither this statute nor its regulations are intended to protect persons from economic injury. The effect of a permit exemption renewal upon competition is not within the legitimate scope of inquiry in this proceeding. Since Buffalo Fuel Corporation's economic interest as a competitor is, standing alone, beyond the purview of Article 27, Title 3, that corporation is not entitled to party status in this proceeding (cf. Matter of New York State Builders Association v. State of New ~ork, 98 Misc 2d 1045 [Sup. Ct., Albany Co., 1979])

Moreover, a fair reading of ECL Article 70 establishes that the opportunity for an adjudicatory hearing is principally designed to give an Applicant a measure of due process in the consideration of its applications by the Department. The role of an intervenor in such a hearing is to provide assistance in compiling a complete record that adequatley reflects all factors the Commissioner must consider in making a final determination. I concur with the ALJ that the proposed intervenor has failed to demonstrate that it could materially assist the parties and ALJ in developing a complete record on the renewal criteria at issue in this proceeding. Denial of party status is also consistent with the ALJ1s authority to limit a person's participation to those areas "in which its expertise would prove beneficial to the development of a factual record."

Finally, the fact that Buffalo Fuel Corporation is a petitioner in a pending court action challenging the validity of 6 NYCRR Part 364 has no relevance to its entitlement to party status here. My decision is based entirely upon that corporationls failure to satisfy the "zone of interest" test.

Accordingly, the ruling of ALJ Louis, dated November 1, 1985, is affirmed in all respects.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its Office in the County of Albany, New York this 20th day of November, 1985.